Steve Friedman, Senior Attorney, National Legal Research Group
In light of the COVID-19 pandemic, many aspects of our lives have been severely altered and restricted in the name of public health. The extent of the states' police power is currently being tested amid the COVID-19 pandemic, and one such legal battleground involves the freedom of religious practice.
As long ago noted by the Supreme Court, "[t]he right to practice religion freely does not include liberty to expose the community . . . to communicable disease or the latter to ill health or death." Prince v. Massachusetts, 321 U.S. 158, 166‑67 (1944). As illustrated below, even the fundamental right to gather in worship can be somewhat restricted by the government (i.e., prohibiting in-person services), but even such restrictions have limits (i.e., cannot ban drive-in services).
Undeniably, the Free Exercise Clause of the First Amendment protects citizens' right to pray. See Sause v. Bauer, 138 S. Ct. 2561, 2562 (2018). The Clause is meant to protect religious observers against unequal treatment based on their religious status or beliefs. See Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017). Although the Clause prohibits the government from punishing or withholding benefits based on one's religious beliefs, the Clause does not entitle citizens to an exemption from a generally applicable law solely due to their religious beliefs. See id. at 2021.
As of April 24, 2020, there have been close to 900,000 people diagnosed with COVID-19 in America and over 50,000 COVID-19 related deaths. See https://www.worldometers.info/coronavirus/#countries (last visited Apr. 24, 2020). At this time, there is no medicine that can prevent or cure the disease. See World Health Organization, Q&A on Coronaviruses (COVID-19) (Apr. 8, 2020) (last visited Apr. 22, 2020). Significantly, the virus is primarily spread between people during close contact, often via small droplets produced by coughing, sneezing, or talking. See id. In an effort to contain the spread of COVID-19, most states have enacted administrative, emergency, and/or executive orders prohibiting large gatherings and/or shutting down non-essential businesses and activities. See Council of State Governments, Executive Orders (last visited Apr. 22, 2020).
State governments can and do perform many of the vital functions of modern government, which are generally referred to as the "police power." See Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 535-36 (2012). A state's exercise of its police power is presumptively constitutional, especially when public health and safety are implicated. See United Nuclear Corp. v. Cannon, 553 F. Supp. 1220, 1230 (D.R.I. 1982) (citing Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 442 (1960)); accord Legacy Church, Inc. v. Kunkel, No. CIV 20-0327 JB\SC, 2020 WL 1905586, at *30 (D.N.M. Apr. 17, 2020) ("[W]hen the state faces a major public health threat, . . . its Tenth Amendment police and public health powers are at a maximum.").
In Southwest Virginia, a Russell County trial court judge refused to grant a temporary exemption to the stay-at-home order to allow in-person attendance at church services for the Easter holiday. See Matthew Barakat (Associated Press), Judge Rejects Injunction Against Stay-home Order, Virginia Lawyers Weekly (Apr. 9, 2020); Robert Sorrell, Judge Denies Temporary Injunction in Russell County Man's Church Suit Against Governor, Bristol Herald Courier (Apr. 10, 2020). In that case, the plaintiff argued that Virginia's executive order unfairly treated religion by explicitly excluding religious gatherings of more than 10 people while imposing no such explicit restriction on other businesses and/or deeming other businesses essential so that they can remain operational, e.g., liquor stores. See id. In response, the state argued that large gatherings must be prohibited to slow the transmission of COVID-19 and, further, there are alternatives to in-person worship, such as drive-in services and live-streaming over the Internet. See Ned Oliver, Virginia Mercury, Virginia Man Sues to Reopen Churches by Easter (Apr. 8, 2020).
Speaking of drive-in church services, the City of Louisville, Kentucky, recently ordered persons not to attend religious services, even if congregants remained in their cars to worship. See On Fire Christian Ctr., Inc. v. Fischer, , Civ. Act. No. 3:20-CV-264-JRW 2020 WL 1820249 (W.D. Ky. Apr. 11, 2020). A church filed a lawsuit and sought temporary restraining order ("TRO") to prevent the city from enforcing the prohibition against drive-in Easter services. See id. The federal district court held that, given the strong likelihood of success on the merits of church's federal and state Free Exercise claims, the requirements for a TRO were satisfied. See id. at *6-8 (city's threatened enforcement of ban substantially burdened church's religious practice in a manner that was neither narrowly tailored nor neutral between religious and non-religious conduct, given that city allowed other, non-religious and no-more-essential parking and drive-throughs, including drive-through liquor stores and ice cream shops, church would suffer irreparable injury absent TRO, as online service was inadequate substitute, balance of equities favored TRO, and TRO was in public interest).
In New Mexico, a church brought suit against the state seeking injunctive relief from an emergency order prohibiting mass gatherings. See Kunkel, 2020 WL 1905586. In relevant part, the church asserted a violation of the Free Exercise Clause after the state removed an exemption for places of worship in its generally applicable order prohibiting mass gatherings without social distancing. The federal district court held that the church was not likely to succeed on merits of its claim. See id. at *30-35 (emergency order was subject to rational basis review because it was neutral and generally applicable and because there was no evidence of animus against religion; emergency order served important government interests, and state's process for determining what businesses were essential did not involve state's subjective, case-by-case judgment of merits of religious activities). Notably, the Kunkel court distinguished Fischer on its facts. See id. at *36.